Prosecutors detail alleged Kennebunk prostitution encounters

By Jennifer Feals

jfeals@seacoastonline.com

February 13, 2013 - 4:25 PM

PORTLAND, Maine — Prosecutors in the Mark Strong trial painted a vivid picture during oral arguments before the Supreme Judicial Court Wednesday of what allegedly went on behind closed doors in the Kennebunk prostitution case.

A man arrives at a business office for his weekly date with his secret lover.

She is there waiting, unlocks the door to let him in, and takes him upstairs where there is a bed waiting. They both undress, talk, and after massaging each other, engage in sexual activity. Then they lay together, talking for 20 minutes.

"The most private, intimate thing people can do," York County Assistant District Attorney Patrick Gordon described before the Supreme Judicial Court Wednesday. "He didn't know when he went there that she had hidden a camera underneath some lingerie. He didn't know when he went there, that her partner in crime was watching all of this on the internet through a Skype connection."

If the man were undressing in a bathroom, he would have a reasonable expectation of privacy. But since he went to a place of business, with the intent of paying cash for sex, shouldn't he still expect privacy, Gordon asked the court.

"I don't think anyone would reasonably expect they are going to be recorded while undressing and engaging in sexual relations," Gordon said.

Prosecutors and defense attorneys in the case of Strong, the Thomaston businessman accused of running a prostitution operation in Kennebunk for more than a year-and-a-half, stated their case in an appeal before the Superior Court of the Supreme Courts decision to dismiss 46 invasion of privacy counts against Strong.

Strong is charged alongside Alexis Wright, 30, of Wells. Prosecutors say the two conspired to tape Wright's sexual encounters with clients without their knowledge.

Both have pled not guilty. Strong did not appear in court Wednesday.

Prosecutors, who filed the appeal before the Supreme Court, are seeking to reinstate the 46 invasion of privacy counts against Strong, arguing that individuals have an expectation of privacy, while defense attorneys argue that clients were at Wright's business to commit a crime and therefore should not expect privacy.

Strong is still facing 12 counts of promotion of prostitution and one count of conspiracy to commit the crime of promotion of prostitution.

After hearing oral arguments Wednesday, the Supreme Court could make a decision at any time. Strong's trial has been put on hold pending the court's ruling, with jury selection still incomplete and potential jurors in a holding pattern. Jurors can still be called in the case through the end of the month.

While the state statute protects individuals who may reasonably expect to be free from surveillance, the Supreme Court asked Wednesday if that changes when money is exchanged for an illegal act.

"A person who goes to a home, the hotel room, or the business of a voluntary social companion may have expectations society recognizes as very different from a person who goes to engage in a commercial transaction for sex," Chief Justice Leigh Saufley said in response to the state's argument.

"The Legislature sought to provide protection in places people can reasonably expect to be free of surveillance. Can we consider a place of prostitution as a place where one can reasonably expect to be free from surveillance? Doesn't it matter, the fact that this is prostitution, doesn't that matter? It colors both the place and what might reasonably be expected and it also colors the people involved."

Gordon said to find that a person who goes to a place of business to pay for sex should not have an expectation of privacy would "produce inconsistent results."

"What you are talking about is a difference between a social relationship and a monetary relationship and we are only concerned with the latter," said Justice Ellen Gorman. "I think all of us in this room would agree in your example of the secret lover you would expect to be free from surveillance. The question is if it's a paid lover."

Strong's attorney Daniel Lilley told the Supreme Court that the state's argument is "more unique than meritorious" as it says an individual engaging in a sexual act with a paid prostitute is protected by state law.

"I think the whole question here is reasonableness on the expectation of privacy for someone who is paying a prostitute for sex. Obviously that's the missing fact in his hypothetical about the secret lover," Lilley said. "That's clearly an illegal act. As long as we have a law in Maine that says prostitution is illegal, and I don't see a lot of legislatures stepping up to make it legal, then there is no real argument."

Lilley said he does believe there are instances where a criminal can also be a victim, but does not think this is such an instance.

"The legislative intent was that the privacy law was enacted to prevent hearing or seeing things that are justifiably expected to be kept quiet. It kind of leaves out sex for money," Lilley said.Members of the Supreme Court asked Lilley why he filed the motion to dismiss the 46 counts just as Strong's trial was set to get underway and also questioned prosecutors on why they didn't object to the motion.

Lilley said he felt that a motion for suppression, filed earlier in the case regarding evidence gathered, was going to be granted, but was not. He later filed a motion to withdraw from the case, citing Strong's inability to pay him and an inability to create a strong case against the "behemoth of the government." That motion was also dismissed.

The motion to dismiss the 46 counts was filed shortly after, when Lilley says the defense began digging into the "hard work of this case."

Gordon said not objecting to Lilley's motion to dismiss the 46 counts, on the grounds that it was filed too late, was "a mistake."

Wright's attorney Sarah Churchill, did not speak before the court Wednesday, but filed an amicus brief supporting the defense's argument.

While Wright has pleaded not guilty to all charges, at least 18 men have pleaded guilty to engaging a prostitute in relation to the case, and more than 40 others, including one woman, have been charged. Churchill argues that those charged should not have expected privacy at all as they were going to a business “for the purpose of committing crime.”

Outside of court Wednesday, Churchill said that is not an admission that her client did run a prostitution operation.

"I'm not saying prostitution did happen," Churchill said, but did say that if the Supreme Court supports the dismissal of the 46 counts, she will file a motion to dismiss the same 46 counts Wright is facing.

"My client and Mr. Strong are legally in the same position on the violation of privacy charges," she said.

Churchill said there is no indication of when the court could issue a decision on the appeal, but said she expects it will happen before the end of the month in order to save the jury pool. She also noted that the court has expedited its review thus far.

"I would expect them to rule relatively quickly," she said. "They have to get while the gettin's good."